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The Judiciary in India has played an integral role in developing the discourse around commercial surrogacy. In the present chapter, this dissertation would examine the response of the judiciary in India and elsewhere in the world to the phenomena of commercial surrogacy, highlighting the issues that have arisen for judicial determination and the principles laid down by the judiciary.
Legislative Vacuum in India and the Importance of Judicial Responses
The situation of commercial surrogacy in India is that of legality without legislation[footnoteRef:1], and has had to extensively, thus, be dealt with by Courts. Issues such as whether the parent country of the commissioning couple recognizes and accepts the citizenship of the surrogate child are of great importance since The Citizenship Act of India does not accord citizenship to a child born out of surrogacy and such matters can leave the child in a no-mans land where citizenship is denied from both countries. This is an important issue for consideration since it directly harms the child who is not at fault and this factor should be a prerequisite for surrogacy agreements. [1: There exists no law regulating surrogacy, but there is none banning/ restricting it either.]
Increased use of technology by commissioning parents beget a child would have a great impact on the social structure, meaning of family, the institution of marriage and it will affect the social norms, morals and ethics in the society. Further, the use of surrogacy by aged and disabled persons will raise the issues of maintenance and welfare of the child. Therefore it is necessary to determine the criteria regarding the use of surrogacy by individuals other than married infertile couples.[footnoteRef:2] [2: Kaumudhi Challa, Contentious Issues in Surrogacy : Legal and Ethical Perspectives in India Vol.1, 2012 Christ University Law Journal (117 to 126) at 121]
Further, the validity of Surrogacy contracts in India is unknown. The law relating to surrogacy is vague and uncertain. A large number of countries consider surrogacy contracts illegal while some others have their own laws for their regulation. In India, it is generally criticized that surrogacy contracts are opposed to public policy because they involve the use of womb by a woman for begetting a child to be handed over to the other party on payment of money, which is like renting of womb and selling of child[footnoteRef:3]. It is to be noted that a contract opposed to public policy is void contract according to the Indian Contract Act, 1872. Thus the legality of surrogacy contracts is uncertain.[footnoteRef:4] [3: Watson, Clara. (2016). Womb Rentals and Baby-Selling: Does Surrogacy Undermine the Human Dignity and Rights of the Surrogate Mother and Child?. The New Bioethics. 22. 1-17. 10.1080/20502877.2016.1238582.] [4: Kaumudhi Challa, Contentious Issues in Surrogacy : Legal and Ethical Perspectives in India Vol.1, 2012 Christ University Law Journal (117 to 126) at 121]
There are currently no statutes regulating surrogacy in India. Due to the legislative vacuum that has existed, judgments have been the main mode in which rights of parties came to be defined. And hence the judgments of courts on the issue become of prime importance.
Leading Cases
The substantial issue of surrogate arrangement was presented for the first time before the Supreme Court of India in Baby Manji Yamadas case[footnoteRef:5]. In this case a Japanese couple entered surrogacy contract pursuant to which Baby Manji was born to the Indian surrogate mother. The commissioning father Mr. Yamada tried to secure travelling document to take the baby to Japan. But the Japanese Embassy in India refused to grant Manji a Japanese passport or visa as the Japanese Civil code did not recognize surrogate children. Mr. Yamada then tried to file for an Indian passport for Manji, which requires a birth certificate for its issuance. Further, a birth certificate according to Indian law requires the names of both mother and father. In the present case, Mr. Yamada was the genetic father but ambiguity for authorities arose in case of mothers name because Baby Manji had three mothers- commissioning mother, the anonymous egg donor, and the surrogate. Thus, authorities refuse to grant a birth certificate. Consequently, the Indian passport was refused. The court instead of giving any decision, ultimately directed the petitioner, the babys parental grandmother, to the National Commission for Protection of Child Rights for further directions, which directed that the grandmother become the legal guardian of Baby Manji. [5: Baby Manji Yamda v. Union of India and another AIR 2009 SC 84: (2008) 13 SCC 518]
The Court gave no guidelines in this case, and since the surrogacy contract did not cover a situation such as this, nor did any existing laws help to clarify the matter- both, the parentage and the nationality of Baby Manji were impossible to determine under existing definitions of family and citizenship under Indian and Japanese law. The situation soon grew into a legal and diplomatic crisis. The case of Baby Manji illustrated the complexity and challenges faced by institutions in the face of commercial surrogacy arrangements.
The unresolved question of the surrogate mother as natural mother was revisited in the Supreme Court of India[footnoteRef:6] as a challenge to a ruling given by the Gujarat High Court in Jan Blaze v. Anand Municipality[footnoteRef:7]. In this case a childless German couple had twins through a surrogate mother with the help of Anand infertility clinic, Gujarat. As German laws do not recognize surrogacy as a means of parenthood, they would not allow the children to be treated as German citizens born out of surrogacy. To avoid the foreseeable legal hurdle of immigration process, the couple approached the Gujarat High Court for permitting their surrogate children to carry Indian passports. The court in this case along with the citizenship and issuing of passport to twins, was also concerned with the gestational surrogate mother and donor of ova[footnoteRef:8]. The Gujarat High Court said that the surrogate must be considered the natural mother of the twins, thus granting them passports- a reasoning that seemed tailored towards recognizing the twins as Indian citizens and issuing Indian passports for them. [6: R. Sedhuraman, Why no to Surrogacy Laws, Asks SC. 16th December 2009 (Wednesday) The Tribune 2] [7: AIR 2010 Guj 21] [8: A woman who carries a pregnancy and gives birth to a child for another woman or couple. For a woman to serve as a gestational carrier, an embryo (created by the process of in vitro fertilization) is implanted in her uterus.]
The court found that in absence of any legislation to the contrary, it is inclined to recognize the gestational surrogate who has given birth to the child as natural mother and anonymous egg donor cannot be regarded as natural mother. Considering the commissioning mother, the court held that she is just the wife of the biological father, who has neither donated the ova nor conceived or delivered the babies, and thus, cannot in the absence of legislation be treated as legal mother and she can never be the natural mother. The reasoning, though sufficient to grant passports for the children sets a discriminatory standard, measured against which, no adoptive mother or commissioning mother can ever seek to be called a childs natural mother. Even in subsequent cases, contentious issues have been dealt with on a case to case basis, with no set standard followed, apart from the courts seemingly inclined to look after the best interest of the child. Nonetheless, Indian courts have not yet comprehensively addressed surrogacy, leaving the task to the legislature.[footnoteRef:9] [9: Jasdeep Kaur, Surrogacy: A Paradox Regarding Motherhood Rights With Special Reference to India , Vol II No.1, 2012 The Legal Analyst (113 to 121) at 119.]
Internationally, in the year 2010, a gay couple, Dan Goldberg and Arnon Angel from Israel to whom twin male infants were born in Mumbai from an Indian surrogate mother, were stranded in India after the refusal of the Jerusalem Family Court to allow a paternity test to initiate the process for Israeli citizenship for the twins. The issue was debated in the Knesset (Israeli Parliament) where Prime Minister Benjamin Netanyahu had to intervene so that the infants could be brought to Israel following legal procedures. Ultimately, in appeal, the Jerusalem District Court, accepted the claim that it was in the best interest to hold a DNA paternity test to establish that Dan Goldberg was the father of the twins, Itai and Liron[footnoteRef:10]. [10: Aditi Tondon , Gay Couple Realises Parenthood Dream In India The Tribune, February 17, 2010]
The DNA sample of Goldberg and the twins were brought to the Sheeba Medical Centre in Israel which established Goldberg as the father of the infants. After being stranded in Mumbai for over 3 months, Goldberg and his twin baby boys returned to Israel in May 2010 after being granted Israel passports. In K. Kalaiselvi v. Chennai Port Trust, Represented by the Chairman, Chennai[footnoteRef:11]
Maternity Benefit Act, 1961, Madras Port Trust (Leave) Regulations, 1987, the petitioner was working as an Assistant Superintendent in respondent/Port Trust who requested the respondent for sanction of maternity leave to look after newly born girl child and reimburse medical expenses and also to issue (familys medical insurance) FMI Card incorporating newly born child through representation. The main issue involved was whether the petitioner working in the Chennai Port Trust was entitled to avail maternity leave similar to that of leave provided under Rule 3-A of the Regulations in the absence of any legal provision and even in case where she gets the child through an arrangement by surrogate parents. The respondent cancelled leave granted for a period of 59 days and rejected request for inclusion of female child in FMI card. Hence, the instant writ petition was filed. [11: W.P.No.8188 of 2012;decided by Madras HC on 4th March, 2013.]
The Madras High Court did not find anything illegal about petitioner having obtained a child through surrogate arrangement. When once it was admitted that said minor child was daughter of petitioner and at the time of application, she was only one day old, she was entitled for leave akin to persons who are granted leave in terms of Rule 3-A of the Regulations. Even in case of adoption, adoptive mother did not give birth to child, but yet necessity of bonding of mother with adoptive child was recognized by Central Govt. It was held that the petitioner was entitled for leave in terms of Rule 3-A of the Regulations[footnoteRef:12]. Thus, respondent was directed to grant leave to petitioner in terms of Rule 3-A of the Regulations recognizing child obtained through surrogate procedure. The petition was thus allowed. [12: Rule 3-A
Leave to female employees on adoption of a child
A female employee on her adoption a child may be granted leave of the kind and admissible (including commuted leave without production of medical certificate for a period not exceeding 60 days and leave not due) upto one year subject to the following conditions :
- (i)the facility will not be available to an adoptive mother already having two living children at the time of adoption;
- (ii)the maximum admissible period of leave of the kind due and admissible will be regulated as under :
- (a)If the age of the adopted child is less than one month, leave upto one year may be allowed.
- (b)If the age of the child is six months or more, leave upto six months may be allowed.
- (c)If the age of the child is nine months or more leave upto three months may be allowed.]
This particular case showed a progressive move towards an inclusive understanding of motherhood by the Court. It not only acknowledged the commissioning mothers right to leave, but also understood the need of the child to be looked after, and kept it above everything else. The principle propounded in this case, was further relied on in Sadhna Agrawal vs State Of Chhattisgarh[footnoteRef:13], P. Geetha vs The Kerala Livestock Development Board Ltd[footnoteRef:14], Dr. Hema Menon vs. State of Maharashtra[footnoteRef:15] and T. Priyadharsini vs The Secretary To Government[footnoteRef:16][footnoteRef:17]. However, all these judgments indicate a sharp difference in the judicial concern for the commissioning mother as opposed to preventing exploitation or protecting rights of the surrogate. [13: 2017 SCC OnLine Chh 19] [14: 2015 SCC OnLine Ker 71] [15: (2015) 5 AIR Bom R 370] [16: W.P.(MD) No.9227/2015] [17: Even though this wasnt a surrogacy case.]
In P. Geetha, Justice Nadu opines, For Robert Brown, all love begins and ends with motherhood; by which a woman plays the God. Glorious it is as the gift of nature, being both sacrosanct and sacrificial, though; now again, science has forced us to alter our perspective of motherhood. It is no longer an indivisible instinct of a mother to bear and bring up a child. With advancement of reproductive science, now, on occasions, the bearer of the seed is a mere vessel, a nursery to sprout, and the sapling is soon transported to some other soil to grow on. Now, it is Laws turn to appreciate the dichotomy of divine duty, the split motherhood.
The tone of divine duty shows the bias of the judiciary that favours commissioning mothers over surrogates. It seems to imply that commissioning mothers at least want to perform their true duty of bringing up a child, and fulfil their purpose of being a woman, whereas the surrogate mothers are immorally disassociated from their purpose, and are acting in a way that is not natural. It severely attacks the free choice that a surrogate makes to become one, and bear a child for a commissioning parent, and also criticizes the surrogate for exercising her bodily autonomy.
Even though it seems at first that the paramount consideration of the courts has been the welfare of the child, since Courts have recommended that the welfare needs of the children should be at the heart of the decisions taken in cases involving surrogacy arrangements, what also needs to be asked is what exactly constitutes the best interests of the child? Since there is no strict legal definition of the same, can this vague concept not be used as a way of furthering judicial arbitrariness and bias, that leans towards the commissioning parents (mothers) than the surrogates? It also becomes imperative to ascertain as to what would be the remedy available to biological parent/s to obtain exclusive legal custody of surrogate children; how can the rights of the surrogate mother be waived off completely; how can the rights of the ovum or sperm donor be restricted; and how can the genetic constitution of the surrogate baby be established and recorded with authenticity, and whether any of it is justifiable.
Courts in India have had to rely on Constitutional principles to adjudicate on cases related to surrogacy, and the approach has often been one of acknowledging the rights of the commissioning parents, as well as looking after the best interest of the child. In Rama Panday v. Union of India[footnoteRef:18], placing reliance on the Baby Manji[footnoteRef:19] judgement, the Court noted that: [18: WP(C) No. 844 of 2014] [19: Supra, note Manji ]
In my opinion, where a surrogacy arrangement is in place, the commissioning mother continues to remain the legal mother of the child, both during and after the pregnancy. To cite an example: suppose on account of a disagreement between the surrogate mother and the commissioning parents, the surrogate mother takes a unilateral decision to terminate the pregnancy, albeit within the period permissible in law for termination of pregnancy quite clearly, to my mind, the commissioning parents would have a legal right to restrain the surrogate mother from taking any such action which may be detrimental to the interest of the child. The legal basis for the court to entertain such a plea would, in my view, be, amongst others, the fact that the commissioning mother is the legal mother of the child. The basis for reaching such a conclusion is that, surrogacy, is recognized as a lawful agreement in the eyes of law in this country.
This interpretation of the Court located the maternal rights of the commissioning mother right from conception. The Court worked towards not only championing the rights of the commissioning mother but effectively stripping the surrogate of the little power she might have in the arrangement. The quote above indicates the judicial inclination towards protecting commissioning parents rights as compared to the surrogate mother, which may sometimes be cloaked in the best interests principle. Why is the judiciary doing this? Is it a bias against surrogates because they are hiring their wombs commercially a role that judges may feel needs to be undertaken by women altruistically? It is this murky terrain of exploitation that can seep into such arrangements, that the legislature and executive have decided to remove through the proposed ban on commercial surrogacy. These steps have been discussed in the next chapter of this dissertation.
While judiciary is leaning towards commissioning parents, the legislature is leaning towards protecting surrogate mothers rights (from exploitation etc.), albeit in a manner not benefitting her. In the fourth chapter of this dissertation, this dichotomy will be examined.
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